A debate sparked by the free-range parenting movement has drawn attention to the threats and intrusions poor, minority families have long endured.

September 30, 2015

D.C. Levers, who says her daughter Josee, 6, has been in foster care for three years following a domestic violence removal, wipes away tears as she holds a sign declaring "Black Kids Matter" during a press conference, July 8, 2015, in New York. (AP Photo/Bebeto Matthews)

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On July 29, 2013, a Latina mother in Illinois named Natasha Felix sent her three sons, ages 11, 9, and 5, out to play with a visiting cousin, a young girl, in a fenced park right next to her apartment building. The oldest boy was charged with keeping an eye on his siblings, while Felix watched them all from the window. While they were outside, a local preschool teacher showed up at the park with her class. She saw the 9-year-old climb a tree. Felix’s youngest son fought with his cousin over a scooter and, at one point, ran with it into the street. Based on this, the teacher called the child-abuse hotline, and Felix received a visit from the Department of Children and Family Services.

According to legal filings in the case, the investigator, Nancy Rodriguez, found that Felix’s kids “were clothed appropriately, appeared clean [and] well groomed,” and that Felix “appeared to be a good mother.” Felix’s oldest son seemed like a “mature young boy” who “certainly could be allowed to go outside by himself to the park next door.”

However, when Rodriguez asked Felix if the boys had any special needs, Felix replied that the 11-year-old and the 9-year-old had been diagnosed with ADHD. On the advice of their doctor, they were off their medications for the summer. Rodriguez later wrote that “based on the mother not knowing that the kids were running into the street with the scooter, based on the children having ADHD,” she recommended that Felix be cited for “Inadequate Supervision” under the Illinois Abused and Neglected Child Reporting Act. As a result, Felix was placed on the state’s child-abuse registry, which led to her losing her job as a home healthcare aide and ended her dreams of becoming a licensed practical nurse.

“She’s been devastated,” says Diane Redleaf, executive director of the Family Defense Center, who is representing Felix before a state appeals court. “I’ve been talking to her about how this impacted her, and it’s heartbreaking. She couldn’t send her son to take the garbage out—she was afraid to do that.”

Earlier this year, a Maryland couple, Alexander and Danielle Meitiv, made international news after two run-ins with Child Protective Services, sparked by their decision to let their children, ages 10 and 6, walk to neighborhood parks by themselves. As self-described “free-range parents,” the Meitivs are committed to giving their kids freedom from constant adult oversight. According to an interview with Danielle in Psychology Today, after the second incident, a social worker demanded that Alexander sign a “temporary safety plan” saying that his children would be supervised at all times until CPS could do a follow-up. When he balked, the social worker threatened to have the children taken away from him immediately and called the police. The couple were ultimately found “responsible for unsubstantiated child neglect,” which Danielle calls “an Orwellian judgment,” adding that their lawyer describes it as “‘legal purgatory,’ because it seems to be meaningless in plain English, yet it’s like a cloud hanging over our heads.”

The Meitiv case was highly unusual, but not because of the arbitrariness or overreaction of CPS. It was unusual because the Meitivs are white, affluent, and highly educated: He’s a theoretical physicist, and she’s a science writer and consultant. “I’ve worked in this field for 35 years, and I can’t remember when child-welfare cases like this have been in the news,” says Redleaf. “We’ve been trying and trying to get that to happen.”

Advocates for families caught up in the child-welfare system hope that the national debate sparked by the free-range parenting movement will draw attention to the threats and intrusions that poor and minority parents endure all the time. Child-neglect statutes, says Martin Guggenheim, a New York University law professor and codirector of the school’s Family Defense Clinic, tend to be extremely vague, giving enormous discretion to social workers. “The reason we’ve tolerated the level of impreciseness in these laws for decades,” he notes, “is that they tend to be employed almost exclusively in poor communities—communities that are already highly regulated and overseen by low-level bureaucrats like the police. For somebody like me, the ‘free-range’ cases that are hitting the paper today are a dream come true, because finally people who otherwise don’t care about this problem are now calling out and saying, ‘Aren’t we going too far here?’”

“She’s been devastated. She couldn’t send her son to take the garbage out—she was afraid to do that.” — Diane Redleaf on her client, Natasha Felix

Indeed, several recent incidents in which poor women of color have been arrested for their entirely rational parenting decisions have received national attention, though not as much as the Meitivs’ case. In July, Laura Browder of Houston was arrested for child abandonment after bringing her kids, ages 6 and 2, to a food court and leaving them there—never out of her line of sight—while she interviewed for a job 30 feet away. A year earlier, Debra Harrell of South Carolina was arrested for letting her 9-year-old play alone in a park while she worked her shift at McDonald’s.

“Certainly, prior to this, I don’t think most white people knew very much about the child-welfare system, or were afraid that someone was going to knock on their door and say, ‘Let me see your kids,’” says Dorothy Roberts, a University of Pennsylvania law professor and the author of Shattered Bonds: The Color of Child Welfare. “Whereas in black neighborhoods, especially poor black neighborhoods, child-welfare-agency involvement is concentrated, so everybody is familiar with it.”

In a July article for Al Jazeera America, Peggy Cooper Davis, an NYU law professor and former Family Court judge, highlighted the devastating effects that arbitrary decisions by CPS and similar agencies can have on black families. “I think of a devoted father whose child was removed from his care because a $5 bag of marijuana was found in his room by staff of the shelter where father and child were living,” she wrote. “I think of mothers who lost custody of their children because the mothers themselves had been subjected to domestic abuse.”

Yet progressives have not, in general, seen CPS as worthy of the same suspicion as other forms of law enforcement. (“Child Protective Services” tends to be used as a catchall term for child-welfare agencies, though different states use different names.) “I don’t often hear people relate police arbitrariness and child-welfare-authority arbitrariness,” says Davis. “It would be useful to relate them, for they often have to do with similar kinds of biased presumptions having dreadful effects in stressful situations.”

This view, of course, is hardly universal among experts: there are still those who defend CPS as a progressive institution. Among them is Elizabeth Bartholet, a Harvard Law professor and faculty director of the school’s Child Advocacy Program. Although Roberts once worked as Bartholet’s research assistant, today they represent opposite poles in the debate. Bartholet, a white woman who formerly worked for the NAACP Legal Defense Fund, calls her opponents “extreme family preservationists” who are “putting kids at risk by insisting that, at almost all costs, they stay at home” with abusive or neglectful parents. She maintains that anecdotes about outrageous CPS intrusions are outliers: “More people need to think about all these issues from the point of view of the child. Imagine an infant or a toddler growing up in a household where they’re being tortured, being beaten, being locked in a closet, left on the floor to scrounge around for whatever food they can find. That happens all the time. Kids are removed from those houses and put right back.”

These things do happen. At the same time, in the majority of cases in which kids are taken from their families, the grounds are neglect, not physical abuse (though, as Bartholet points out, sometimes physical abuse is sus- pected, but only neglect can be proved). Usually, drugs are involved. “Overwhelmingly, something like 70 to 90 percent of cases in the child-welfare caseload are characterized by parental substance abuse, drugs, and/or alcohol,” Bartholet says. To her, that’s not an indictment of the system, because she believes that people who use drugs, particularly during pregnancy, should not be allowed to parent. As she wrote in a Boston Globe op-ed last year, “Massachusetts should test all children to assess whether there is prenatal drug or alcohol exposure. It should require substance-abusing parents to engage in rehabilitative treatment if they want to keep their children. It should place at-risk children in homes where they can be adopted if the birth parents can not comply with the treatment regimen.”

For Roberts, who is black, Bartholet is far too cavalier about the costs of separating parents and children, in some cases permanently. “It is appalling to devalue the bonds that black children have with their families in the way that Bartholet does,” she says.

“More and more, I see the hashtag #abolish fostercare.” — Dorothy Roberts

Whatever you think of parents who use drugs, it’s clear that poor parents and parents of color are held to a very different standard than middle-class white parents. “My daughter broke her collarbone twice when she was a young child,” says Guggenheim. “I took her to the same hospital, and the second time I brought her they treated me with great dignity and respect. If I were in Bed-Stuy and a single parent, [CPS] might have come to my door, they might have found some joints on my nightstand and taken my child, and I would be lucky if, 12 months later, I got her back in my custody. That’s how I live my white privilege every day. And they would have found joints on my night table, let’s be clear about that.”

The treatment of parents in the child-welfare system used to have greater salience among civil libertarians, but it was overshadowed by the very real imperative to protect children from abuse in their own homes. Guggenheim was a staff lawyer at the ACLU from 1976 to 1980, doing work to challenge “the vagueness of neglect and termination-of-parental-rights laws.” But toward the end of his time there, he says, the organization began to shift from protecting the rights of parents to their children to protecting children from their parents. The children’s-rights advocate Marcia Robinson Lowry came aboard in 1979. For a few months, she and Guggenheim worked together, but “her agenda was to support state intervention,” he says, “and mine was to limit it.” So he resigned. (In 1995, Lowry left to form a separate organization called Children’s Rights; after her departure, the issues surrounding family law largely fell off the ACLU’s agenda.)

Meanwhile, the right of parents to raise their kids free of government intrusion has become a cause célèbre for conservatives. Christian fundamentalists regularly demonize Child Protective Services; homeschooling activist ­Michael Farris even wrote a thriller, Anonymous Tip, about CPS’s evil child-snatching machinations. And Republican Senator Mike Lee of Utah recently added a “free-range kids” provision to the reauthorization of the Every Child Achieves Act, a federal law funding elementary education. Lee’s amendment says that parents cannot be subject to civil or criminal charges for letting their kids walk or bike to school at whatever age they deem appropriate.

Yet at a time when the left is increasingly attuned to state-sponsored surveillance and the abuse of people of color, the progressive case for parents’ rights is worth taking seriously. “More and more, I see the hashtag #abolish fostercare,” says Roberts. “Not as much as #abolishprison, but I think there’s a growing awareness about these connections. I certainly try in my own writing and advocacy to emphasize the connections between prison, foster care, and the welfare system. They’re all very much connected historically in terms of who is in these systems and who is punished—the myths about people in these systems.”

Emma Ketteringham, managing director of the family defense practice at New York’s Bronx Defenders, which represents low-income people in both criminal and civil cases, lives in Park Slope, Brooklyn—the “mecca of parenting,” as she calls it. In her neighborhood, she sees a wide range of parenting styles and philosophies, from free-range to helicopter. “In that community, differences in parenting style get the raise of an eyebrow or a disapproving look from a neighbor or a classmate’s parent—for some of the exact same things I see my clients being brought to Child Protective Services for,” she says.

Part of the issue lies in mandatory reporting. Almost all states have laws on the books requiring professionals who come into contact with children—teachers, nurses, doctors, social workers, and the like—to report suspected cases of abuse. As of 2013, 18 states and Puerto Rico require anyone who suspects child abuse to report it. In most states, there are criminal penalties for those who have reason to believe abuse is taking place but say nothing—and those who make abuse claims that turn out to be unfounded generally have immunity.

On the one hand, there’s broad agreement that people who witness a child being hurt should report it. But when it comes to who is being reported, and for what, both race and class are inescapable pieces of the equation. “Doctors are more likely to think and suspect child abuse in the case of black parents,” says Roberts. She cites a Journal of the American Medical Association study which found that “minority children…with accidental injuries were more than 3 times more likely than their white counterparts to be reported for suspected abuse.”

“I was so scared she was going to remove them, I completely changed the way I parented.” — Seattle mother Jessica Carter

Determining neglect is even more subjective. “These are situations in which, in many respects, it’s driven by community norms: What do people believe is appropriate child-rearing?” says Fred Wulczyn, a senior research fellow at the University of Chicago’s Chapin Hall and director of the Center for State Foster Care and Adoption Data. “Which is what makes this such a dicey issue.”

According to Jessica Carter, for example, CPS visited her in 2008, while she was living in a suburban Seattle apartment complex. A white woman married to a Puerto Rican man, Carter was a mother of two at the time. An anonymous caller had accused her of leaving her infant son at home while she went out and about the building. She suspects a busybody neighbor reported her after seeing her run downstairs to collect her mail while her son napped in his crib.

Carter’s son was asleep when the CPS worker arrived, and his bedroom door was closed. This, the worker warned Carter, was unacceptable. The worker “told me that CPS’s stance is that I should have eyes on the child at all times,” Carter says. When she objected, saying that this would be impossible, the CPS worker accused her of failing to take matters seriously. “I was terrified I was going to lose my children,” Carter recalls. “I was so scared she was going to come back and remove them, I completely changed the way I parented for a really long time.”

The charges against Carter were ultimately dismissed as unfounded. Even so, when she got her certified nursing assistant’s license, she had to alert the licensing board that she’d been investigated for child neglect.

Lowry, who now heads an organization called A Better Childhood, insists that the problem with most child-welfare systems isn’t that they’re overzealous, but that they’re incompetent. “I used to think it leaned one way or the other,” she says. “Now I just think it’s not well run. The decision-making is not careful, and there’s no sense of urgency in getting children back to families or, if they need it, into new families.”

In July, Lowry filed a lawsuit against New York City’s Administration for Children’s Services to force it to act faster in finding permanent homes for kids. One of the plaintiffs is 3-year-old Thierry E., who was taken from his mother almost two years ago, after she called a domestic-violence hotline about her abusive husband, on the grounds that her husband might hurt the boy as well. (The child’s race isn’t specified in the lawsuit, and Lowry declined to provide it.) “There was not and never has been any allegation that anyone abused Thierry E. or that his mother failed to provide him with appropriate, loving care,” the suit maintains. He was placed with a foster mother who spoke only Spanish, a language he didn’t understand. His mother, a schoolteacher, is no longer with her abuser and has been desperately trying to get her son back for 21 months—so far without success. “At the end of his twice-weekly visits with his mother, he cries uncontrollably,” the suit continues. “When his mother expressed concern at this behavior, Thierry E.’s therapist told her that he had to ‘get used to it because this was his life now.’”

Minority children with accidental injuries were more than three times as likely as white children to be reported as victims of suspected abuse.

Lowry’s suit, however, also has plaintiffs who languished in foster care for years, and it alleges that the parents’ rights to these children should have been severed long ago in order to free them up for adoption. New York’s Administration for Children’s Services, the suit argues, “should not wait months or years until reunification efforts have failed to begin alternative permanency planning, including identifying other potential permanent homes for the child.”

As Lowry points out, the number of kids in foster care has dropped significantly in the last decade. After peaking at 524,000 in 2002, it went down to 402,378 in 2013, the last year for which data are available. “The number is really down a lot, so I don’t know how one can make a credible claim that children are being removed too frequently,” Lowry says. The problem, she adds, is that some children are being removed who shouldn’t be, and others who should be removed are not.

Roberts agrees with Lowry’s diagnosis, up to a point. “It is a poorly run system,” she says. “You do have to very often wonder how it can be that you have children who would be perfectly safe at home—all they needed was the heater to be fixed, or the mother to have childcare—and then those children are traumatized for life by being placed in foster care. And you wonder how that can happen at the same time that a social worker can be well aware that a child is being starved at home and do nothing.”

To her, however, the fact that the system is so broken means that it can only do harm by intervening more than it already does. “It’s far beyond the problem of just making it more efficient,” Roberts says. “I certainly wouldn’t want a system that more efficiently removes children from their homes.”

Most of the time, when CPS is called, no proof emerges that the parents did anything wrong. According to the Department of Health and Human Services, in 80 percent of investigations “the children were found to be non-victims of maltreatment.” Yet once CPS enters a poor family’s life, says Ketteringham, it can be hard for the family to extricate itself. When New York’s Administration for Children’s Services makes contact with a family, she says, “they’re usually going to check your cupboards, check your refrigerator, look for signs of drug use.” She’s had cases where a woman was reported after testing positive for opiate use at birth; even if it turns out that a doctor administered the drug during labor, a caseworker may discover that the woman is living with a man who has a criminal record. And that’s enough to keep the case open.

Parents might be referred to preventive services, such as drug treatment or follow-up medical appointments. The caseworkers “come back a couple times and make sure the parent is doing those things,” Ketteringham says. “If parents fail to do those things, or if, in the caseworker’s view, the child is at risk of serious harm, they can remove the child right then without going to court.” She’s seen petitions reporting that a mother has been prescribed Prozac “but is no longer compliant with her medication,” Ketteringham says; a judge “once ordered a mother not to fold clothes and put them into her baby’s crib.”

Sometimes parents can’t comply even if they want to. Kristen Weber is a senior associate at the Center for the Study of Social Policy, a DC think tank that hosts the Alliance for Racial Equity in Child Welfare, a coalition of groups working to reform the system. Recently, Weber says, she’s been looking at cases of migrant farmworkers ordered to comply with “services,” such as parenting classes, for which they have no transportation. “They have to make a choice: ‘Do I lose a day’s pay and then not be able to pay my rent and food’”—which, Weber notes, can also be grounds for child removal—“‘or do I [refuse to] go and do this ‘service’ that will take all day for a two-hour parenting class?’”

Even if the demands of CPS are unreasonable, advocates say that deference—if not outright servility—is often required from the parents, much as it is in encounters with police. “By resisting their efforts to help you or, God forbid, talking about your rights to parent in a specific way, it usually means that everyone concludes you’re beyond help, because you haven’t accepted that you need their help,” Ketteringham says. “Usually, you’re telling your client that the fastest way to have your children returned is to cooperate with the investigation.”

People who work in the field generally don’t blame individual caseworkers for this situation. The biases are systemic, not individual; they appear regardless of the race of the workers. “We have largely not found a huge difference in outcomes based on workers,” Weber says. “We did work in Detroit, where almost the entire workforce and leadership is African-American, and we’re still seeing evidence of disproportionality and disparity.”

Structurally, all of the incentives in the system encourage intervention, but there are scant resources to tailor that invention successfully. CPS employees can lose their jobs for failing to act, but rarely for acting too aggressively. “When people are working in these indeterminate job situations, they become reluctant to make the wrong decisions,” Wulczyn says. “It’s always easier to act than it is to not act. If I’m the least bit suspicious and my job is on the line if I make the wrong decision, I can always make the decision [to intervene] and let somebody else deal with it.” If the charges turn out to be unfounded, he adds, a judge can always throw them out.

On the surface, this makes a certain amount of sense. Surely it’s better, at least in some cases, to err in favor of protecting a child. But the lack of urgency that Lowry cited means that mistakes are not always quickly rectified, traumatizing the very children CPS purports to help. “If the family standing before the court where an intervention was requested were a family for whom we had regard in terms of the child’s bond to the parents, we would work a lot harder to keep a child with their mother,” Ketteringham says. “You see it every day in the system.”

A motion to allow unsupervised visits between a parent and a child may not even be heard for a month, Ketteringham continues, and there’s no sense of outrage over this. “If it were a family of privilege standing before that court, no one would say, ‘What’s the big deal?’ If a family of privilege had their child removed from the school setting and interviewed without notice to them, and removed from their care with no phone call for two or three days about where they are… that just wouldn’t happen.”

Further, lawyers say it’s almost unheard of for child-protection agencies to intervene in order to give families the material support they actually need. Many cases of child neglect involve parents who can’t afford childcare, says Redleaf, and yet “they never give people childcare support, if that’s the reason. They never say: ‘Here’s a childcare provider for you, and we’ll pay for it.’”

Nor could they, even if they wanted to: There is far more federal funding available for foster care than there is to subsidize services for children who remain at home. “For workers who are trying to do great work, if you’re going into a family and you don’t have the resources to support the family in their home, you’re left with very difficult decisions,” says Megan Martin, who heads public-policy work at the Center for the Study of Social Policy. “Our policy on child welfare hasn’t caught up with the research on child welfare; what we know families need is very different from what we’re providing them with at every level.”

That dilemma might be starting to change. In August, Senator Ron Wyden introduced the Family Stability and Kinship Care Act, which is designed to direct more funding to in-home services. “Somewhere in America, a mother has to choose between leaving her kids at home alone to work a night shift, and losing the wages that allow her to barely scrape by,” Wyden said in a statement. “The current child-welfare funding system provides two choices: put kids in foster care or do nothing.”

We might see a new legal precedent on the child- welfare system as well. Later this fall, Redleaf says, the Illinois Appellate Court will either begin oral arguments on Natasha Felix’s case, or decide it on the basis of the briefs that have already been submitted. Redleaf’s goal isn’t just to have Felix exonerated and removed from the state’s child-abuse registry; it is also to establish a precedent governing how the neglect statute is applied in Illinois. In the words of his legal filing, “The appeal raises a question of great importance to parents and children of this State: may a parent who allows her school-aged children to play in a nearby park for thirty or forty minutes, without remaining in her line of sight at all times, avoid being registered in a State-run database as a child neglector?”

If the answer is no, then we might see an Illinois version of the Meitivs in the news sometime soon. However, that family won’t be the ones paying the greatest price.

Editor’s note: This piece originally referred to Child Protective Services investigators as social workers. In some states, CPS investigators are not required to have a degree in social work. The piece has been corrected.